U.S.

Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office of the Clerk
5 J 07 Leesburg Pike, Suite 2000
Falls Church. Virginia 20530

OHS/ICE Office of Chief Counsel - NYC

26 Federal Plaza, 11th Floor
New York, NY 10278

Name: ROSARIO, FELIX

A 075-930-968
Date of this notice: 7/10/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

DOWtL

t1ftA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:

Grant, Edward R.
Guendelsberger, John
Holiona, Hope Malia

Userteam:

Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Felix Rosario, A075 930 968 (BIA July 10, 2015)

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Javier, Tiffany
BRETZ & COVEN, LLP
305 Broadway, Suite 100
New York, NY 10007

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - NYC

26 Federal Plaza, 11th Floor
New York, NY 10278

Name: ROSARIO, FELIX

A 075-930-968

Date of this notice: 7/10/2015

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,

DorutL

t1/lA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:

Grant, Edward R.
Guendelsberger, John
Holiona, Hope Malia

Userteam:

Cite as: Felix Rosario, A075 930 968 (BIA July 10, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

ROSARIO, FELIX
A075-930-968
HUDSON COUNTY CORRECTIONAL
30-35 HACKENSACK AVE
KEARNEY, NJ 07032

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A075 930 968 - New York, NY

Date:

!JUL l O 2015

In re: FELIX ROSARIO

APPEAL
ON BEHALF OF RESPONDENT: Tiffany Javier, Esquire
APPLICATION: Reopening
The respondent, a native and citizen of the Dominican Republic, appeals the decision of the
Immigration Judge, dated April 1, 2015, denying his motion to reopen.
Upon consideration of the totality of the record, we are satisfied that the respondent has
established that the order of removal, entered in absentia on April 21, 2006, should be rescinded
on account of lack of notice. See section 240(b)(5)(C)(ii) of the Immigration and Nationality
Act, 8 U.S.C. 1229a(b)(5)(C)(ii); 8 C.F.R. 1003.23(b)(4)(ii); Matter of G-Y-R-, 23 I&N Dec.
181 (BIA 2001) (holding that the entry of an in absentia order is inappropriate where the record
reflects that the alien did not receive, or could not be charged with receiving, the charging
document that was served at an address obtained from documents filed with the former
Immigration and Naturalization Service several years earlier). Accordingly, the following order
is entered.
ORDER: The respondent's appeal is sustained, the in absentia order of removal is rescinded,
these removal proceedings are reopened, and the record is remanded to the Immigration Court
for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

Cite as: Felix Rosario, A075 930 968 (BIA July 10, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
NEW YORK, NEW YORK
April I, 2015

Felix ROSARIO,
AO?S-930-968,

On behalf of Respondent
Ismael Gonzales, Esq.
Gonzales & Associates LLC
1270 Broadway, Suite 202
New York, NY 10001

Nancy Torrellas, Esq.

Assist. Chief Counsel
New York District, ICE

DECISION ON REQUEST TO REOPEN PROCEEDINGS

AND STAY OF REMOVAL
The respondent, by his attorneys, filed a motion on March 11, 2015 to rescind the court's
April 21, 2006 in absentia removal order asserting that he was not provided with notice of the
proceedings. The respondent also seeks a stay of removal.
The Dep't of Homeland Security ("DHS"), Bureau of Immigration and Customs
Enforcement ("ICE") filed written opposition to the motion on March 24, 2015. For the reasons
stated herein, the motion to rescind the in absentia order and to reopen proceedings is denied.
Procedural History
The respondent was placed in removal proceedings with the service of a Notice to Appear
("NTA") on March 29, 2006. On April 21, 2006 the respondent failed to appear and the court
proceeded in the absence of the respondent and issued an order of removal.
Pertinent Provision
Title 8 C.F.R. 1003.26 states that in any proceedings in which the respondent fails to
appear and the respondent had notice of the hearing, the court shall conduct a hearing in
absentia. The 8 C.F.R. 1003.23(b)(4)(ii) provides that a party seeking to reopen an in absentia
removal order must either file a motion to reopen within 180 days after the date of the order and
demonstrate that the failure to appear was due to exceptional circumstances or file a motion at
any time if the respondent did not receive notice in accordance with sections 239(a)(l) or (2) of
the Act or if the respondent was in federal or state custody and did not appear through no fault of
the respondent.

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---------------------------------------------){
In the Matter of

While the respondent claims he is eligible for Cancellation of Removal, he fails to

provide sufficient evidence to demonstrate that he is eligible for such relief. The respondent is
not married to his alleged fiancee and she provides no affidavit. Also, the respondent claims to
have a US born citizen son, but fails to attach a copy of the birth certificate or other proof that he
is the father of the child. The respondent fails to show that he is primafacie eligible for relief.
Accordingly, the following orders shall be entered:
ORDER
IT IS ORDERED that the respondent's motion to rescind the in absentia order and
reopen proceedings is denied;
IT IS FURTHER ORDERED that any provisional stay issued in this matter or based
upon any statutory or regulatory provisions granting respondent a stay pending adjudication of
the motion is vacated and set aside forthwith;
IT IS FURTHER ORDERED that respondent's request for stay of deportation 1 is
deemed moot.

The respondent requested a stay of removal.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Discussion
The respondent's motion will be denied. The respondent argues that he was never aware
that he had been placed in removal proceedings and missed his immigration court date. In the
Matter ofM-R-A-, 24 I&N Dec 665 (BIA 2008) the Board listed seven factors for the court to
consider in rebutting the presumption of delivery. The respondent submitted an affidavit
asserting he did not receive the Notice to Appear, however, he fails to submit affidavits from
other family members. The respondent also fails to allege if he was eligible for any forms of
relief at the time the removal proceedings were imitated as an incentive for him to attend his
removal hearing. The respondent was the beneficiary of an immediate relative petition that was
denied when his prior wife failed to appear for the interview. The denial of the petition
prompted the DHS to begin removal proceedings. The immediate relative petition denial
certainly indicates respondent had a disincentive to appear for his removal proceedings.